How do you prove a case of sexual harassment in a company?

Have you been the victim of acts that could constitute sexual harassment? Are you a CSE referent in the fight against harassment and do you want to best guide a victim of sexual harassment in your company?

Proving sexual harassment in a court of law involves knowing a few procedural rules to define a consistent line of attack. Indeed, the rules of evidence are different depending on whether the case is brought before a criminal court or before the labor courts. To refine your strategy, it is important to assess all of these rules of evidence. But first of all, we are going to provide a brief reminder of the elements necessary to legally characterize a case of sexual harassment.

A brief reminder of the legal definition of sexual harassment

THEArticle L222-33 of the Penal Code And lArticle L1153-1 of the Labor Code provide for several types of sexual harassment:

• the crime of sexual harassment by the repetition of words or acts with sexual connotation that undermines the dignity of the victim for their humiliating nature or creating an intimidating, hostile or offensive situation;
• similar sexual harassment (or “sexual blackmail”) involving all forms of serious pressure, even if not repeated, in order to obtain an act of a sexual nature for their benefit or for the benefit of a third party.

Once one of these qualifications is characterized, the victim employee has two possible remedies:

• an appeal against the employer in the context of the employment relationship for breach of its security obligation before the Labor Court;
• an appeal against the perpetrator of sexual harassment before a criminal court.

These two actions can (must) be carried out simultaneously in order to punish the perpetrator and to obtain redress. However, it is necessary to assess the evidentiary regime in force in these two courts in order to put in place the best defence strategy.

Special protection for employees who are victims of sexual harassment and witnesses

In practice, breaking the silence in order to take legal action against the harasser requires a lot of courage. Fear of reprisals, lack of support, fear of judgment from loved ones... Many people who are victims of sexual harassment prefer to hide in silence. Indeed, one in five women has already been a victim of sexual harassment in the workplace, while only 5% have referred the matter to the judges to see the perpetrator sanctioned...

Be aware, however, that the victim of sexual harassment and potential witnesses cannot be worried about dismissal following the revelation of the facts of sexual harassment.

Otherwise, the disciplinary sanction or dismissal would be considered void ipso jure under the application of Article L1153-4 of the Labor Code. Thus, the employee in question has the right to be reintegrated into the company. However, he may renounce it and obtain redundancy compensation as well as compensation resulting from the unlawful termination of the employment contract.

Proving sexual harassment in business before the labor courts

The Labor Court is the competent jurisdiction to settle disputes arising during the course of work. It plays a central role in cases of sexual harassment that have occurred in the context of employment relationships.

Why prove harassment before the labor courts?

A dispute before the Labor Court mainly aims to establish the existence of sexual harassment in order to request a termination of the employment contract (or only to obtain compensation) at the expense of the employer for breach of its obligation to ensure a secure result. Thus, referral to the Labour Court is possible even when the employer-natural person has not committed any act of sexual harassment. The sole purpose of proceedings before the labour courts is to resolve the situation within the framework of employment relationships.

Also, the victim of harassment can act as a witness during a dispute between the harasser and the employer in the context of contesting a disciplinary sanction (most often a dismissal for serious misconduct).

How to prove sexual harassment before the labor courts?

It is up to the victim to demonstrate, by means of tangible and convincing evidence, the validity of his allegations. Before the labour courts, the evidence is free, that is to say that the claims can in principle be demonstrated by any means.

When it comes to sexual harassment, the mechanisms of proof are slightly different. Recognizing that the acts of harassment are evasive in nature, in particular because of the methods of operation (difficult to obtain documentary evidence) and to establish a balance between the employee and the employer, the law imposes a “shared” method of proof.

Without talking about a reversal of the burden of proof, thearticle L1154-1 of the Labor Code proposes an adjustment of the burden of proof by requiring only the employee to “establish the facts” of sexual harassment. It is then up to the defendant (the employer) to prove that the alleged facts are false or do not constitute sexual harassment.

Labour court advisers will assess this confrontation of realities in order to determine whether or not sexual harassment is to be characterized. If there is no evidence to judge, the judge can order any investigative measures (look for additional evidence) that he considers useful.

What evidence of sexual harassment is admissible before the Labor Court?

Having just to report the facts, the employee who is a victim of harassment can therefore produce all the elements that he considers useful to corroborate his version of the facts:

• testimonies from other employees or victims;
• messages sent by the harasser (SMS, email, voice messages...);
• report (s) made to the hierarchy (employer, HR manager, etc.);
• where appropriate, objective elements that may reflect differential treatment based on sexist considerations...

In short, all the elements are good to take. The more specific they are, the more judges will be able to base their conviction in favor of the existence of sexual harassment.

However, the principle of fair evidence before civil courts must be respected (the Labor Court is one of them). As absurd as it may be in view of the situation, not all evidence is admissible before the labour courts. This is the case, for example, of audio and video recordings without the consent of the offender.

On the other hand, in criminal matters, it is possible to produce recordings made without the knowledge of the harasser. This is why, in a case of sexual harassment, it is strongly recommended to perform two simultaneous actions: one before the labor courts, the other before the criminal court.

Proving sexual harassment in criminal court

Why prove sexual harassment in a criminal case?

Unlike the Labor Court, criminal action aims to punish the offender and to obtain compensation regardless of the underlying employment relationship. In the alternative, criminal action has two major interests:

• the methods of proof are more flexible since it is possible to produce video and audio recordings obtained without the consent of the perpetrator;
• the judgments handed down by the criminal court have, in the final instance, the force of res judicata and are binding on the labour courts.

The advantage of proving sexual harassment in criminal matters

If sexual harassment is recognized in criminal law, the Labor Court is obliged to recognize its existence and to rule accordingly. It is therefore no longer necessary to report facts or evidence corroborating the sexual harassment situation. Likewise, the employer can no longer dispute its existence.

Therefore, if two simultaneous actions are initiated and you have recordings of the harasser, the best strategy is to request a stay of proceedings (temporary interruption of the trial) for the labor court instance in favor of the criminal instance. Once sexual harassment has been recognized as a criminal offence thanks to the recordings, you can resume the course of labour proceedings to assert your claims without having to prove the sexual harassment again.